Exploring Noem v. Perdomo
By Avery Sneed ‘28
On September 8, 2025, the Supreme Court in Noem v. Perdomo ruled in a 6-3 decision permitting federal immigration officials to conduct detentive investigative stops based on four reasonable-suspicion factors: race or ethnicity, speaking Spanish or having accented English, presence at a location where illegal aliens are known to gather, and working in a particular type of job. Pedro Vasquez Perdomo, Carlos Alexander Osorto, and others were either stopped at public places or at their place of work, and they were further questioned about their immigration status and detained. Thus, they filed suit with the Central District Court of California for a writ of habeas corpus, a court order that allows these individuals to challenge the legality of their detention.
Background
On June 6, 2025, U.S. Customs and Border Protection and the Directorate of the U.S. Immigration and Customs Enforcement were sent to conduct ‘Operation At Large’ in Los Angeles, California. This operation consisted of three to five agents who approached individuals in public places such as streets, sidewalks, and other publicly accessible areas. However, certain types of businesses were selected for encounters based on past experiences where illegal aliens utilize and seek work at these locations. During these operations, agents temporarily detained individuals and made arrests for immigration violations. However, some of those detained were, in fact, lawful American citizens. The plaintiffs, Pedro Vasquez Perdomo, Carlos Alexander Osorto, and Isaac Antonio Villegas Molina, were waiting at a Metro bus stop when four unmarked cars surrounded them. Masked men got out of the cars wearing regular clothes, no visible badges, and did not identify themselves. The agents put the men into separate cars and drove them to a parking lot, where they were further interrogated and taken to a Los Angeles detention center. Although these three individuals were not the only ones in this case who were stopped and detained, their situation is substantially similar to the others.
Central District Court of California & Ninth Circuit Court of Appeals
Five individual plaintiffs and three membership associations alleged that the defendants, senior federal officials responsible for directing immigration enforcement in the Los Angeles area, have an ongoing policy, pattern, and/or practice of conducting detentive stops without reasonable suspicion, in violation of the Fourth Amendment. The district court found that the plaintiffs are likely to succeed in showing that seizures requiring reasonable suspicion have occurred. The circumstances surrounding the stops were coercive enough that the interactions were not consensual. When immigration enforcement stops involve detaining suspected illegal aliens, they must comply with the Fourth Amendment’s reasonable suspicion requirement. The Fourth Amendment requires consideration of the totality of the circumstances. Furthermore, the district court contended that even when the four factors are combined, they can never amount to reasonable suspicion. Thus, the district court granted the plaintiffs’ motion for a temporary restraining order (TRO) prohibiting federal officials from conducting detentive stops for immigration enforcement without first establishing individualized reasonable suspicion that the person to be stopped was unlawfully in the United States. The order further stated that the defendants are not permitted to rely solely or in combination on the apparent race or ethnicity, speaking Spanish or speaking accented English, presence at a particular location, and the type of work one does to form the reasonable suspicion for a detentive stop, except as permitted by law.
The defendants, dissatisfied with the district court’s ruling, appealed to the Ninth Circuit Court of Appeals for a motion for a stay pending appeal of the TRO, which would halt the enforcement of the TRO while the appeal is under review. However, the defendants, now appellants, did not challenge the district court’s determination that the plaintiffs, now appellees, were likely to succeed in proving their factual allegations regarding the stop-and-arrest practices. Nor did the appellants dispute that these detentive stops have been based solely on the four factors and that the sole reliance alone or in combination of the factors does not satisfy the constitutional requirement of reasonable suspicion. The arguments that the appellants did make were that the appellees cannot show a sufficient likelihood of future injury to support standing for injunctive relief and, even if they can meet the Article III threshold, they still cannot show a “real and immediate threat” that they will be harmed again sufficient to justify injunctive relief. Injunctive relief is a court order that compels a party to stop performing a specific action or compel them to do a specific action, and the injunctive relief the appellees were granted from the district court was the TRO barring officials from conducting Operation At Large.
For the substance of the TRO, the appellants argue that it is vague, inconsistent with the Fourth Amendment, and exceeds what is necessary to provide the plaintiffs with complete relief. The vagueness that the appellants are referring to is in “except as permitted by law.” The Ninth Circuit Court of Appeals reviewed the appellants' arguments and considered two threshold questions: statutory jurisdiction and Article III standing. Under the All Writs Act, 28 U.S.C.§ 1651, the Ninth Circuit does have jurisdiction to consider a motion for a stay of a TRO pending appeal. As to Article III standing, a plaintiff must have a personal stake in the case; if they do not, then the case will be dismissed by the court because a plaintiff must have a necessary personal connection to the lawsuit’s outcome. To satisfy the constitutional minimum of standing, a plaintiff must have suffered an injury in fact. This is an invasion of a legally protected interest that is concrete and particularized as well as actual or imminent rather than conjectural or hypothetical. Simply put, the injury must be real, distinct, and tangible. The injury must have already occurred or is about to happen in the near future; it cannot rest on a mere possibility and future speculation. Being stopped by government agents constitutes injury; the appellants are not challenging that aspect, but rather challenging the appellee's standing to seek prospective injunctive relief. Appellants contended that even if the plaintiffs have shown injury sufficient for Article III standing, they cannot come close to showing the threat of immediate and irreparable harm that is necessary for an injunction. The issue being debated here is whether the appellees also have standing to ask for a prospective injunctive relief that is aimed at preventing future harm, not just to dwell on what has already occurred. The Ninth Circuit Court of Appeals concluded that the individual plaintiffs indeed have standing to seek injunctive relief because there is a realistic threat that each will be stopped again without reasonable suspicion as part of the defendants' Operation At Large. For the association plaintiffs to establish “associational” standing, they must show that the members would have standing to sue in their own right. The interest it seeks to protect is germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. The association plaintiff meets all these prongs.
Thus, they turned to the central question: Should the district court TRO stay during the appeal proceedings? Four Nken factors were considered in the decision. (1) whether the appellants had made a strong showing that it is likely to succeed on the merits of its appeal, (2) whether the appellants will be irreparably injured absent a stay, (3) whether issuance of the stay will substantially injure the other parties, and (4) where the public interest lies. The appellants have the burden of showing that the circumstances justify an exercise of that discretion.
Before evaluating the likelihood of success on the merits of the appeal, the Ninth Circuit had to consider whether the district court's TRO is appealable. This is because a TRO is not immediately appealable since they are short-term and issued in emergencies. However, there are exceptions to the rule; a TRO can be appealed if it has the same effect as a preliminary injunction. A TRO remains in effect for only fourteen days, and this TRO will remain in effect for longer than fourteen days. Therefore, the district court’s TRO is appealable. The appellants were likely to succeed on the merits pertaining only to their objections that the TRO is vague by the phrase “except as permitted by law.” Federal Rule of Civil Procedure 65(d)(1) requires that any TRO be specific in terms and described in reasonable detail. The “except as permitted by law” is impermissibly vague: what is permitted by law is not clear. To further demonstrate their likelihood of success on the merits, they argued that under the Fourth Amendment, reviewing courts must look at the totality of the circumstances. They contended that the TRO improperly creates a categorical rule on reasonable suspicion, creating a fixed legal standard for determining reasonable suspicion rather than allowing a case-by-case analysis. The Ninth Circuit reasoned that it did not create a categorical rule if the future stops are based on additional and relevant facts.
Applying these factors, the court found no evidence that the appellants were likely to suffer irreparable injury without a stay. The TRO only prohibited the appellants from conducting detentive stops based solely on any combination of an individual's race or ethnicity, speaking Spanish and having accented English, and the type of work. The argument that the TRO will have a chilling effect on enforcement operations was insufficient. The court concluded that there were reasons to believe that the appellants were likely to suffer irreparable harm without a TRO. Emphasizing that protecting constitutional rights served the public interest. The Ninth Circuit denied the motion to stay. However, granted the appellant's motion to stay as to the “except as permitted by law.”
SCOTUS
The Supreme Court had a contrasting view of the decisions concluded by the Central District Court of California and the Ninth Circuit Court of Appeals. The Supreme Court believed the decisions of the lower courts hung the prospect of contempt over every investigative stop of suspected illegal aliens. Thus, where did the lower courts err in their judgments? To note, there was no majority opinion in this case; instead, the Supreme Court issued an unsigned order on September 8, 2025.
It appears that the lower courts erred from the beginning. Starting with Article III standing, as previously stated, the Ninth Circuit did contend that the plaintiffs had standing. The Supreme Court has long held that allegations of past unlawful interactions with law enforcement do not show a sufficient risk of future ones. The Court reasoned that the plaintiffs' prior detention, by itself, does not establish a sufficient likelihood of a real and immediate threat of future detention. The Supreme Court examined the variance of the estimate of illegal aliens and the total population in the Central District of California. Out of the Central District’s twenty million residents, one in every ten people is an illegal alien; they believed that these odds were slim that the plaintiffs would be detained again. Therefore, the standing argument by the Ninth Circuit was rejected as it was based on conjectural future harm. Now shifting towards the examination of the Nken factors, the Ninth Circuit Court of Appeals erred in judgment in evaluating whether the TRO would inflict irreparable harm on the government. The district court’s TRO contravenes the Fourth Amendment principles by imposing categorical rules that artificially limit inferences of reasonable suspicion. The District Court erred when deciding that the four factors, even in combination, can never amount to reasonable suspicion. Reasonable suspicion is a relatively low bar. The Supreme Court reasoned that the injunction would blatantly deter agents from conducting stops when they may have to show, after the fact, that they used those factors in the stops. The Supreme Court stated that the plaintiffs lacked standing and therefore they cannot show irreparable harm sufficient to warrant injunctive relief. Thus, the Supreme Court issued a stay on the district court’s TRO that prohibited federal immigrant officials from conducting investigative stops based on four reasonable-suspicion factors: race or ethnicity, speaking Spanish or having accented English, presence at a location where illegal aliens are known to gather, and working in a particular type of job.
JaMia Howard is a sophomore majoring in political science.
Sources
Noem v. Perdomo. 606 U. S. (2025)
Richards Immigration Law. Can ICE Arrest a U.S. Citizen? Understanding Criminal vs. Civil Authority. [Photograph]https://rjimmigrationlaw.com/resources/can-ice-arrest-a-u-s-citizen-understanding-criminal-vs-civil-authority/
